You create copyrighted material all the time

… but that doesn’t mean you have to treat all the material the same.

You create copyrighted material every time you send an email (or write a text or a tweet or a Facebook update). You create copyrighted material if you post videos of yourself (or your kids) on YouTube. And if you’re a writer, or artist, or musician (creating original works), you’re creating copyrighted material there, too.

It’s good to sit down periodically and think about what you’re creating, and how you want to handle that. Every 6 or 12 months is a good range, or if something major changes in your life.

Questions to ask yourself:

1) Where am I creating materials?

Do I have a new blog or project or place I hang out and interact? It’s good to do a quick inventory of where you’re currently creating content – it makes it a lot easier to double check policies, think about long-term considerations, and make plans.

For example, you might decide you want to keep a copy of your own content. A regular review can help point out the sites that make it harder to do that. Maybe the kinds of content you’re creating have changed, and you want to keep copies now, but didn’t care as much last year.

2) Do I need to review policies on any sites?

Basically any online site that allows you to talk to other people probably has a clause in their terms of service that talks about allowing them to publish what you share for purposes of use on the site. If they didn’t include this permission, they couldn’t share your stuff with other people. That’s normal and reasonable. But watch out for sites that change their policies, or that try to restrict how you can use your content on other sites.

3) Do I want to give blanket permission in some cases?

Some people do Creative Commons licenses (that give blanket permission to share materials in certain circumstances, like not-for-profit uses, or with attribution) for all their content. Some people do it only for some. Other sites, like Unsplash, collect materials that can be shared and used freely.

4) Do my own spaces have clear policies and contact info?

Do spaces I control (like a personal site, business site, blog, etc.) have copyright statements and information? Is there a way for people to reach me if they have questions about my content?

You don’t need a copyright statement for things to be under copyright, but it’s definitely helpful in reminding people what your policies and preferences are. Because a lot of what I write depends on other material on my blogs or sites, I don’t do Creative Commons, but am generally glad to give permission on request.

5) Where am I getting materials that I use?

Are they coming from appropriate sources that have given permission?

Sharing on social media gets really complicated – but we can decide for ourselves what we’re okay sharing and using. I use photos from Unsplash (which can be modified or shared, and don’t require credit) for my blog, but give credit when feasible. I try to share materials from a creator’s own site or social media accounts whenever possible. I look for credits on art and other creative works, and make sure to share those.

You may make different choices, for a variety of reasons, but it’s good to review what you’re doing, how you feel about that, and whether you want to change anything.

6) Do I have a will that mentions intellectual property?

You create intellectual property, so it’s good to mention that in your will. (I need to do one for my current state: it’s in my to-do list for this month). If you have content online or offline, think about designating someone who can make decisions about that after you die, or whether you want to make a decision about releasing it to the public domain. (Or some of both!)

I have multiple websites, plus a lot of comments on a couple of forums, some of them lengthy works of information in their own right. Designating someone who can make decisions about it is a smart move.

Don’t believe me? Here’s Neil Gaiman explaining why this is so important (and not just for the brilliant writers out there. If you’ve ever created anything that’s helped someone else, moved them, meant something to them, then this is a way to make sure that can continue to happen.)

Legalities

Should you register your copyright?

That depends on a lot of factors. Registration can be complex, especially for things like blogs or collections of less formal work, but may be more worthwhile for books.

You don’t need to register to hold copyright – but registration does give you additional options if there are violations of your copyright about what you can sue for.

All of that said, suing for copyright is, in many cases, expensive and frustrating. Benebell Wen, a lawyer who does intellectual property (and who is also an author of works on Tarot and astrology) has a great overview of why copyright infringement is hard to fight. Because issues of jurisdiction, lack of understanding of copyright by many lawyers and judges, and other practical issues, bringing a suit often only makes sense in really significant (precedent setting cases) or other outliers.

Does someone else own your copyright?

If you have signed a contract with a publisher, there’s a decent chance you’ve signed over at least some of the rights you originally held as the creator. This is why it’s really important to have an agent or lawyer familiar with publishing contracts check your contract before you sign it. Publishers (and music producers, and people who make art available through prints, etc.) need permission or to hold the copyright to do some parts of that (making copies, distributing them, etc.) The details can vary a lot between different kinds of works – some things that are completely standard in music contracts would be completely wrong in book publishing, for example.

Contracts vary a lot about exactly which rights, what happens if an item goes out of print, under what circumstances (if any) the creator can get the rights back, and so on. Look for busy, well-run forums for creators of your particular medium for a place to start with advice or what to look for. I’ll look at pulling together some resources, too.

What happens if there’s an infringement?

Think about what you’d like the outcome to be.

Sometimes emailing and asking for a credit link may make more sense than legal options.

(Some people think you have to take action on any copyright infringement or you lose your rights. That’s a myth when it comes to copyright. (It is more complicated for trademark infringement.) You can decide to use a legal process with some infringements, and let others go.)

There are some legal processes that can help.

If your material is posted online, and you want it removed (and the servers are hosted in the US), the Digital Millenium Copyright Act has a specific set of steps for you to follow.

For large sites, there’s usually a form or other structured way you can make a report. For personal sites, you may have to figure out the hosting service and contact them. Benebell Wen includes a link to templates you can use when writing these emails or letters in the post I linked above.

Decide how much time and energy this is worth to you.

Some people find copyright infringement of their work to be a thing where if they know about it, they need to try and make it go away. Other people find that they spend too much time focusing on it, and it makes them miserable.

Figuring out which is the case for you is usually helpful in making long-term plans. If you need to know if things are misused, you might spend more time setting up automatic searches or using tools that help you find infringements and a system for dealing with them (i.e. having a template on your computer ready to go, reading about issues with copyright regularly, maybe a little consultation with a skilled lawyer who deals with intellectual property.)

If knowing makes you miserable, you might prefer to post more material in ways that are harder to copy or have other people use, set up searches in different ways, and make some specific choices about when and how you look for your own material.

A lot of people are somewhere in the middle: knowing that you’ve decided to make a DMCA report (or equivalent) in most cases, but will let things go if it’s more complex than that is a choice a lot of people make. Or that you care more about images than text, or text than images, or whatever’s true for you.

Using other people’s material

If you blog, share items on social media, or do a number of other common things, you may be using other people’s copyrighted material. Here are some general best practices:

Was this piece designed for sharing?

Retweeting a comment on Twitter, yes. Reblogging something that keeps the chain of who posted it and links back to the original? Generally okay on sites where that happens (think Tumblr). Copying and pasting someone else’s writing into your blog wholesale? Probably not.

Is this the original?

Link back to where you found the original and include whatever information about the original there is. If you can’t figure out the original source, seriously reconsider whether to pass it along and how. Links and information about where you found something and why you think it should be part of your work (or you’re sharing it) are great.

Have you checked out permissions?

Some creators are glad to share their material widely (Unsplash, as I mentioned above, is a way to do that. So are Creative Commons licenses) If that doesn’t apply to the thing you’re sharing, consider whether linking to it or referencing it would work just as well.

Is this an entire work?

Don’t repost entire works unless you’re sure it’s okay. That means don’t share entire copies of books, or entire artworks (or things like Tarot deck images, etc.) If it is okay with that artist or creator, a practice of linking to their own site and permissions with a “Shared with permission from…” is a great thing to do.

Is there a way to contact you?

If you’re regularly posting other people’s content, make sure there’s a way for someone to get in touch if something slips through (contact form, comments on your site, whatever works for you.)

A few last words on this series:

I expect I’ll be coming back to copyright sometime in here – if you weren’t clear about it already, it’s a topic I enjoy digging into. Have a question? Please ask (in comments or on my contact form.) I remain a librarian, not a lawyer, but I’d be delighted to see if I can at least point you in the direction of useful resources.

Personal notes

People sometimes wonder where the lines are, and I’ve known some people who panic about copying material for their own personal notes.

Copyright law has an exception for personal research and study. It’s okay to make a copy (from a legit copy of a work) of a moderate amount of material for your own use – for example, a specific chapter of a book that’s most relevant, or an article from a journal issue, or a selection of articles from a bunch of different journals specific to your topic.

The key is that it’s for your own personal research, and it shouldn’t replace the purchase of that book, or that journal, or whatever. The minute you want to share your collected stuff, you’re stepping outside personal use, and some different concerns apply.

What else is okay? It’s usually fine to copy something (or portions of something) into your own notes, such as a chart, map, layout, quotation, summary, etc. that you find helpful.

Here’s some examples

Copying a specific ritual bit (spell, invocation, etc.)

A layout for a ritual set up, Tarot spread, or other item.

An article on a specific obscure deity from an academic journal

A chapter dealing with deities from a specific location from a larger book.

Keeping a copy of a public post (such as on a blog) for future reference or study (i.e. a post about a particular tradition or group).

Key tips

Whenever you make copies of materials like this, it’s important to note where you got it from. That way, if you ever do want to use it in a way that requires permission or formal citation, you’ll have the information you need.

The information I find useful to note includes:

Author’s name

Title of where I got it from (blog, website, book, journal, etc.)

Address of site (if relevant) or other contact information for the author.

When I collected it

In some cases, noting what I was working on when I found it is helpful. If you’re collecting PDFs, many PDF readers have an annotation tool that means you can type in brief notes on a blank bit of page (beginning or end).

Creating a ritual

One of the things some Pagan folk do a lot is create ritual, or help provide ritual.

And no one wants to stop in the middle of ritual to say “This chant comes from Jess Middleton’s Songs for Earthlingspage 77, and it’s by Donald Engstrom” (One of my favourites, and not just because I know Donald.)

So how do we handle that?

One way is to provide ritual notes at the beginning and end, or to provide them in some other format, so people can track down that chant.

For example, if you have a website, email list, Facebook or Meetup page, put the notes in the ritual of pieces from elsewhere afterwards. Some groups might do half or quarter sheet pages with lyrics and also things to take away from the ritual, like a reminder of the focus or the names of the deities invited.

Sometimes it’s possible to slide that into a description “We’ll be singing “This song” written by This Person, to raise energy to charge our working and “Other song” written by Second Person as we share in food and drink together.”

Key tips

If you’re using other people’s stuff, make it easier for the people you’re sharing it with to find more of it. Everyone wins that way. It also provides reassurance that you’re not misappropriating materials.

(I was around for a situation where someone lightly rewrote evangelical Christian songs and passed them off as their own work. Not only is this not cool on the copyright front, and probably disturbing to the creators of the works who had other things in mind, but it was really jarring and ritual-disrupting for people in that ritual who knew the originals, had strong emotional reactions to them, and didn’t expect to hear close variants in a Pagan ritual.)

It helps a lot if you use sources that mention where they got things when they share them – the Songs for Earthlings book does this, as does the Panpipes Pagan Chant site from Ivo Dominguez for chants. (And sometimes you can use these sources to find the original creators of things you learn elsewhere.)

Blog posts, reviews, and similar writing

Book reviews (and reviews of other things, like audio recordings, podcasts, sites, etc.) are a common way to share resources and talk about them. It can be a great way to send traffic to the sources and resources you most like.

People often wonder whether it’s okay to quote, and if so how much. Here’s the bad news: there’s no clear on answer to this, but there are some common good ideas.

Key tips

Quote the minimal amount you need to to make your point. If you like someone’s ideas but don’t need to quote the precise words, summarise or paraphrase the original.

A good guideline is no more than about 2-3 sentences in a longish (1000 words or so) blog post or online post. If you’re writing a review or discussion of a piece of material, then you’re adding additional information, and you can usually get away with quoting a bit more. For longer works, a common guideline is 250 words total from a book-length work, and proportionately less for shorter works.

On social media, if you’re sharing images or passing along information, make sure you include link backs to the original – it can be easy to miss these when reblogging or tweeting.

Formal writing

The most complex section in some ways, because there are so many variations here. But it’s also the briefest here, because my basic guidance is to look for resources on the kind of formal writing you’re doing .

Academic writers use one of a variety of style and citation guides (MLA, APA, Chicago, or many other field-specific ones) to manage this, and those citation guides take entire books or websites to explain.

In the meantime, keeping clear accurate notes of your materials and their sources will go a long way.

This series

The last part will be coming soon, talking about what to do if you create material (and you have created copyrighted material yourself, I’m quite sure!)

Fair use is a weird thing. It isn’t set out in detail in law – instead, it is a possible defense if someone sues you for copyright infringement. A court or judge has to decide if your specific case is fair use or not. Unless and until that happens, you don’t know for sure.

This makes it very hard to make suggestions, though there are some educational guidelines (more on that in a minute) and a lot of sites have set limits on what they consider okay for the uses they see.

Courts look at four factors when making their rulings about fair use, but different courts have made very different decisions about similar amounts of material, or how material was used.

This is good place for a reminder that getting permission from the copyright holder is often a great way to avoid this whole question. (Either by getting direct permission, or by using materials that have been licensed for general use through blanket permissions: see the section on Creative Commons below.)

Factors

The four factors courts look at are:

How transformative the use is

The nature of the copyrighted work

The amount and substance used

The effect of use on the potential market

People have written books about all of these, so I’m touching on it briefly here, and if you want to dig into it further, the Stanford site mentioned below is a great starting place for a lot more detail aimed at non-lawyers.

Transformative

Have you used the copyrighted work to do something new and interesting? That might favour a transformative use.

Some things courts look for are if you’ve added new meaning by using the work and adding additional material or context. Maybe you’ve used it to make connections between different things.

Fanvids are a great example here: sometimes the song someone chooses and the video clips someone chooses bring out new connections in the existing material, or highlight something that might be lost otherwise.

Nature of the work

In general, fiction and poetry (or creative work in general) gets more protection than non-fiction.

This is because sharing of information or information is seen as a key good thing in society, and so there’s encouragement in the law to do it within reason.

(However, sharing the information doesn’t necessarily mean sharing exactly how someone else said it: often it is better from a copyright point of view to give your own paraphrase and tell people where to find the original rather than copy an extended passage.

Copying directly is usually best saved for when you need to discuss specific wording, or are doing a detailed review or analysis where you look at a segment, then discuss it in detail, and then do another section.)

Unpublished works also generally get more protection than published ones. (Because the creator has the right to control how the work is shared in the first place.)

Amount and substance

Basically, the more you use, the more likely it’s going to be considered a copyright violation. Copying the entire thing, usually a problem.

This is why a lot of spaces set a limit like saying you can quote a certain number of sentences or words: it helps give some guidance about what ‘too much’ might be.

It’s not just about the number of pages or words or percent of an image or song, though – it’s also about how core that piece is to the work you’re copying. This is something it’s very hard to evaluate, but it’s a factor the courts consider.

However, parody is a little different here: if the whole work you produce is a parody, you probably have more license in copying memorable bits from the thing you’re using. The relationship to the original work is a large part of what makes the parody recognisable and effective.

Effect on the potential market

A lot of people try to say that their use won’t affect the market. That isn’t something that the user of copyrighted material gets to determine, though. You don’t know all the parts of the potential market like the original creator or copyright holder does.

Basically, though, if you affect the copyright holder’s ability to make money from their work (by providing copies for free, by using their work to create an effective alternative that people buy instead of the original) then you may find yourself having problems with copyright.

Providing citations and acknowledgement

A lot of people think that if you say where the original was from, that will keep you out of trouble.

Getting permission from the copyright holder, or using material which the copyright holder has agreed to share is a different situation. In that case, credit may still be required as part of the permission or license.

Creative Commons licensing is a method creators can use to give blanket permission for some kinds of uses, and some of the licenses require crediting the original in a specific way.

Educational uses

There are some very general guidelines for educational uses, which means things that look like a structured class This is usually material that is available to a limited number of people (not posted for the entire Internet to access), for the duration of a series of classes (not forever).

Ongoing Pagan classes like seeker, dedicant, or pre-initiate classes can fit into this category, but posting something in public spaces online or using it for a one-time workshop probably would not qualify.

The Stanford site in the resources has an entire section on academic and educational uses that may be of interest.

Welcome back to my series of posts on copyright. As I said in the intro to the last post, it’s a very complicated subject, so today’s post focuses on some specific terms and a few common confusions (we’ll be getting to some more in part 4). Here are the parts in this series.

Intellectual property:

Intellectual property is the broad term used to describe “creations of the mind”. It covers written material, fine arts, music, theatre, performing arts, and also things like inventions, designs, names, concepts, and much more.

These different areas have different laws that apply to them. For example, patent law deals with inventions, and trademark law deals with names, or the copyright law we’ll be focusing on in these posts.

You’ll often see people refer to intellectual property or Intellectual Property Law to describe this group of laws and policies. Intellectual property can also cover things like industrial designs or even identifying a particular food as coming from a specific location.

Pretty much everyone – especially in our modern, Internet-filled world – is producing intellectual property on a regular basis. Most of it doesn’t have a lot of commercial value, but that doesn’t mean it isn’t intellectual property.

Copyright

Copyright law has to do with the rights someone has, around a particular kind of intellectual property (original works in a fixed form). These rights include who can make a copy (hence the name. This can help with people who get confused and call it copywrite.)

Specifically, for most countries these days, copyright is about who can…

make copies of a copyrighted work (that includes posting it online)

distribute copies of a copyrighted work to the public (also includes posting it online)

make derivative works based on the copyrighted work (use it in other ways, new formats, translations, etc.)

perform the work in public

display the work in public.

For some kinds of works, it’s common for the original creator to transfer the copyright to someone else (like a musician might transfer the rights that relate to making and distributing copies to a recording studio.) Some creations, like a movie, are the work of many people, and so part of setting up those projects is figuring out who gets what rights.

Many social media and online community sites have something in their terms of service agreements that note you give them permission to share what you write with others (making and distributing copies) because otherwise people couldn’t read what you wrote or look at the photos you took and shared. Well-designed sites will make it clear they’re only asking for the permissions that allow the site to function, and they aren’t trying to claim copyright over your materials.

It’s possible to give permission for a particular use without transferring the copyright, so a copyright holder can choose to let someone else give a performance or make copies, while still retaining their rights.

Sometimes this process involves a license, which spells out the specific agreement in detail. That way everyone knows what to expect. Some fields, like mainstream publishing and music distribution, have standard sets of license agreements they want to use. Other times, it is entirely up to the people involved and what they agree on. (Also worth noting: licenses are often much more restrictive than the law is.)

My copyright professor said that the vast majority of copyright cases that make it to trial begin with people not being clear about their agreements. This is why you want to work with people who focus on intellectual property law if you’re setting up your own agreements with someone.

Plagiarism:

Plagiarism is different than copyright. Plagiarism is taking someone else’s material and claiming that you wrote it, created it, or otherwise were responsible for it. It gets talked about a lot in education, because it can come up a lot there.

In short, copyright is about who can make decisions about the work, and plagiarism is about whether you give credit to the person who came up with it. Both can apply to a given situation, or only one.

You can plagiarise something and have it also be a copyright violation.
One example: someone takes an extended passage out of a recently published (under copyright) book written by someone else, and puts it in their own blog or essay or article, making it look like they wrote that section.

Another example: Someone takes a poem (or song lyrics, or a song) that is still under copyright and presents it as if they wrote it.

Another example: Someone finds a piece of art on Tumblr (under copyright) and passes it off as theirs.

You can plagiarise something without it being a copyright violation.If someone took several paragraphs out of a much older book – say, one written around 1900 – and put that in their essay or article without any indication someone else wrote it, that would still be plagiarism, but because the book is out of copyright, it is not a copyright violation.

You can have a copyright violation without plagiarism.
On the other hand, someone could copy a section from a book, say it came from the book, and if it was a big enough or central enough part of the work they were taking it from, that could still be a copyright violation, even though you identified where it was from. (I say ‘could’ here because there’s several factors involved. We’ll get to that in the post on fair use.)

Citation is how we avoid plagiarism.Basically, citation is the formal term for “Say where you got this from.” There are lots of different citation formats and details, but those are details. What matters is identifying what material is yours, and what you got from other places and people.

Fair use:

One obvious question that comes up around now is “so when is it okay to share parts of a work with other people?”

If you’re talking about a particular work, you might want to quote a bit so you can say “This is the bit that confuses me” or “This is a really great bit.” People doing research into a topic might want to compare different parts – say, different translations of the same section of text, or different perspectives on the same historical event. And some of us really love parody songs, filk, and other forms of music that take pieces of music and change words or change perspective.

These all fall into an area that is called ‘fair use’ – basically, the idea that there are some uses that are beneficial to the community, or encourage artistic, scientific, or intellectual creativity and growth. Copyright law recognises that these are important, so there are some options for sharing things.

They are complicated sorts of options, though – it’s not as simple as saying “I want to share this, so I can.”

Anyone who tells you that (about copyrighted works) doesn’t understand copyright, so be dubious about other things they say about sharing files, copyright, or related topics.

I’ll have a whole post on fair use coming in part 5.

Idea / expression distinction:

This is an important concept in copyright law. Basically, an idea is not something you can copyright. However, the expression of that idea can be copyrighted – the specific words or images or other aspects you choose.

Think of it like this: the ideas behind a story or myth (the Descent of Inanna, Prometheus bringing fire to humanity, your Great Flood myth of choice) aren’t something you can copyright.

But your particular retelling of it (as soon as it was in a fixed form) would be copyrighted in most cases. The words you chose, the descriptions you used, the order you might put parts of the story in, all of those things create a unique creative work.

The same thing is true of photographs: the idea of an eclipse, for example, isn’t something anyone can copyright. But individual people framing and taking photographs of it, or making artwork that reflects, or writing a poem about it, all of those could potentially be copyrightable works.

Now we’ve gotten those terms and concepts out of the way, Tuesday’s post (part 3) will be about what is under copyright and what isn’t.